Standing Committee E

[Mr. Peter Atkinson in the Chair]

Clause 1

Deterrent effect of potential liability

Oliver Heald: I beg to move amendment No. 10, in page 1, line 11, at end add—
‘(2) In determining negligence the court will have regard to—
(a) the extent that the person undertaking the activity obeyed the instructions given by the person providing the activities, and
(b) the influence of drugs or alcohol.'.

Peter Atkinson: With this it will be convenient to discuss the following amendments:
No. 13, in page 1, line 11, at end add—
‘(2) In considering whether an activity is a desirable activity for the purposes of this Part, the court shall have particular regard to whether the claimant—
(a) willingly accepted a risk as his, or
(b) entered onto land or into premises with the intention of committing an offence.
(3) In determining whether a risk was accepted for the purposes of paragraph 2(a) the court shall decide using the same principles as in other cases in which one person owes a duty of care to another.'.
No. 14, in page 1, line 11, at end add—
‘(2) In considering whether an activity is a desirable activity for the purposes of this Part, the court shall have regard to the age of the claimant and in particular whether the claimant is—
(a) under 10 years of age, or
(b) under 14 years of age but can prove that he did not have the capacity to understand the nature of his actions.'.

Oliver Heald: Mr. Atkinson, I reiterate my welcome to the Chair that I gave to you and your brother Chairman, Mr. Caton. It is good to be under your firm but wise leadership.
All three amendments deal with the question of whether the law should encourage the public to behave in a responsible and safe manner when enjoying leisure pursuits. Their purpose is to look at whether there should be a legal duty to comply with safety instructions and similar such points, because it is important that somebody who is under the influence of drugs or alcohol, or behaving in an obviously reckless way, should shoulder the burden rather than others. The British Association of Leisure Parks, Piers and Attractions, the Field Studies Council and others make the point that in other jurisdictions it has been possible to make that more clear than in English law.
New South Wales, for example, has a clear formal position for dealing with claimants who are drunk or under the influence of drugs when they behave in a particular way and damage themselves. In the case of Radcliffe v McConnell Jones and the Governors of Harper Adams Agricultural College, his honour Judge Brunning found the college 60 per cent. liable for the claimant’s tetraplegia. In that case, a student who had been drinking dived into the shallow end of a college swimming pool. The Court of Appeal, in overruling the decision, made the point that the risk—that in diving the claimant might hit his head on the bottom of the pool—was common and obvious to most adults, and that it was important to bear that in mind. One of the judges said:
“It is unfortunate that a number of high spirited young men will take serious risks with their own safety and do things that they know are forbidden. Often they are disinhibited by drink and the encouragement of their friends. It is the danger and the fact that it is forbidden that provides the thrill. But if the risk materialises, they cannot blame others for their rashness”.
Another similar case was Donoghue v Folkestone Properties Ltd. in 2003. Is there scope for clarifying the law and making it clear, as clause 1 does in other contexts, that it would be a defence if people undertaking activities completely ignored the instructions that they were given by, say, the leisure park or organiser of the activity, or were drunk or high on drugs?

Michael Clapham: Is there not a danger of putting people who are doing a job of work into a difficult position from which it would be difficult to draw back? Let me give the hon. Gentleman the example of a fireman who willingly enters a building as part of his job and is injured. Linking the case to the concept of desirability, if we accept the hon. Gentleman’s proposals, could we not be creating a situation whereby such a person would find that he had accepted the risk?

Oliver Heald: I fully appreciate that it would be a bad thing if that were what I am proposing, but it is not. Amendment No. 10, to which I spoke first, would require the court to have regard to
“the extent to which the person undertaking the activity obeyed the instructions given by the person providing the activities”
and whether the person was under the influence of drugs or alcohol. Neither of those would apply in the case that the hon. Gentleman mentioned. Amendment No. 13 relates to a person who willingly accepts a risk with the intention of committing an offence. Of course the fireman would not intend to commit an offence. Proposed subsection (3) begins:
“In determining whether a risk was accepted for the purposes of paragraph 2(a)”,
which refers back to entering a premises willingly but with the intention to commit an offence. I am alive to the concern raised by the hon. Gentleman, but it need not exist.
One could call amendment No. 13 the Tony Martin defence. It covers a situation in which somebody enters premises willing to commit an offence and thereby exposes himself to risk.

Lembit Öpik: My reading of amendment No. 13 suggests that proposed subsections (2)(a) and (2)(b) actually work slightly separately. They state that they relate to someone who has
“willingly accepted a risk as his, or ... entered onto land or into premises with the intention of committing an offence.”
Would that not mean that a fireman who enters premises and gets injured in the course of trying to put out a fire would not necessarily find it so easy to sue the owner of the premises? There may be problems in considering compensation for people wounded in the conduct of their work, but it would seem unreasonable for the owner of a house that must necessarily be a danger as it is burning to end up being sued by somebody who is pursuing his work. There are two issues to consider and I suggest that the hon. Gentleman is right to say that the amendment would afford some protection against vexatious claims.

Oliver Heald: I am certainly always willing to be corrected on my interpretation of my amendments, and if the Minister says that I have got it wrong and wants to come up with an even better version on Report, nobody will be happier than I.

Angela Watkinson: As the debate has turned to firefighters and my youngest daughter is a firefighter, I feel compelled to contribute.
There is always a leading hand or senior officer in charge of proceedings in a dangerous situation. There may be a case in which firefighters who have entered a building and are in communication with the organisers of the operation outside encounter unforeseen circumstances. They then have to make a quick decision on their own back. I am not sure how legislation can account for such a situation or who could be held responsible should those firefighters sustain injury having acted in accordance with their training and made a sudden decision that takes account of circumstances unknown to the leading hand outside. Such a case might come under the Health and Safety at Work, etc. Act 1974. How can such circumstances be accounted for?

Oliver Heald: That makes me think a little more about the point that the hon. Member for Montgomeryshire (Lembit Öpik) made. I believe that under the law of negligence it has always been the case that if somebody is working in their normal job, going about lawful activities and is injured, and there is fault, the employer can be found liable for damages. However, it has always been said that if the worker acts wholly outside the normal ambit of his work and does something reckless or completely out of line with his duties—I think it was called a “frolic of his own” in a case called Hilton v. Thomas Burton (Rhodes) Ltd.—the workman cannot say to the employer, “Look, it’s your system of work or the way you’ve employed me that is the root of the problem”. It was always open to the employer to use the defence, “You acted outside your instructions in a way that wasn’t envisaged.” It is important that that protection should remain, provided that it is properly decided on. The hon. Gentleman’s point is a good one. If the amendment is not drafted as well as it should be, I know that the Minister will tell me. However, the point about accepting risk—or acting in a criminal way—is that there should be a defence available for the occupier or employer.
The final amendment in the group deals with the situation of children. It is an attempt to consider the duty that applies, even to trespassers, under the Occupiers Liability Act 1984 and to reflect a view of the current situation and the intention of that Act. The case of British Railways Board v. Herrington led to that law. A child of six trespassed over a broken fence and was injured. It was found that the British Railways Board was liable because it was an obvious risk that a child would go over the fence to roam and explore. The intention of the amendment is to restrict the application of that measure to children. We can all understand that a child is likely to climb over a fence if it is not high enough. The amendment aims to say that while, yes, if a child is involved, there should be liability, if someone older—perhaps someone in their late teens or older—acts recklessly and goes on to land, the situation is different. I am interested to hear the Minister’s views on that.
The basic point that I am trying to make in the group of amendments is that individuals should have some responsibility to behave responsibly. There have been dreadful examples of people behaving recklessly in leisure parks. As a society, we believe that individuals should take responsibility for their actions. The question is whether the law can be improved in these three areas.

Julian Brazier: I welcome you to the Chair, Mr. Atkinson. The issues that we are dealing with are fundamental to the workings of the first part of the Bill.
I start by making a quick point that reinforces that made by my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) about firefighters. I have great respect for firefighters. My constituency headquarters burned down just before a general election. A young man was a tenant in the floor upstairs. The firemen arrived and had a terrible battle with the blaze—although none of them was injured—and the building was completely gutted. The student’s car was outside and we thought that we had a tragedy on our hands, but mercifully it transpired that he was sleeping elsewhere that night.
There is a parallel with the armed forces. I ask my hon. Friend and the hon. Member for Barnsley, West and Penistone (Mr. Clapham) to bear in mind that we are dealing with claims of negligence and of breach of statutory duty. The normal route for a fireman injured on duty would not, of course, be a negligence claim against his employer any more than would the normal route for a soldier injured in action be a negligence claim against the Army. The point is well made, but it is not that a fireman, through using his initiative and seeing that he had to do something outside his instructions, would lose the framework of protection for people injured on duty. Far from it. We are dealing with negligence claims that are issued against people who break the law, behave grossly irresponsibly in disobeying instructions, or are drunk or drugged.
As I did on a number of occasions in our previous sitting, I quote Andrew Caplan, the legal adviser to the Scouts. He says:
“I am aware that the matters listed below may be taken into consideration currently by the court when considering the question of contributory negligence but the law on contribution often allows the courts to make an award to the claimant whilst recognising he was in part to blame for his own misfortunes. The problem for the defendant is that they have to proceed through the whole litigation process incurring significant costs and the discount for contribution is usually very small. In addition the defendant has to pay all the claimant’s and his own costs which together far outweigh the cost of the damages in the majority of cases.”
My hon. Friend cited BALPPA, which says:
“the law should encourage the public to behave in a responsible and safe manner when enjoying leisure pursuits. This would place participants under a legal duty to comply with the safety instructions they receive both visually and verbally when enjoying leisure pursuits. Whilst the current law provides a system of contributory negligence, the Courts seldom make a finding especially where the claimant is a child under the control of the parent at the material time. Even where a finding is made, it is almost unheard of for the amount to exceed 50 per cent. and more often the figure is around 20 per cent. and fails to reflect an individual's responsibility.”
Let me relate that to a particular example. I have twice taken my children to a commercial leisure activity centre with the rather colourful name “Going Ape”. Visitors have two safety ropes attached to them and run around through a series of obstacles up in the trees. First, a simple model is used to show the children how to operate the equipment, after which their parents supervise them as they go round. As somebody with quite a lot of experience of such activity from the airborne forces, I must say that the safety standards in both the parks that I visited were extremely high.
I have a horrible suspicion, however, that the time will come when a parent manifestly fails to do the simple check that they should do before their child attempts each obstacle, and the child will be injured. Given the heights involved, the accident could be very serious, and the operation would probably close if a successful case were brought against it. Such operations offer teenagers the opportunity, under strictly controlled safety conditions, to have a hell of a lot of fun, but the court will not take into account the fact that teenagers who are not offered such opportunities—I will not go over the same ground as last time—will often find other, far more dangerous ways to amuse themselves.
BALPPA goes on to say that the Colorado ski industry in the USA was saved from closure by a change in the law. A series of claims was successfully brought against the industry, but it is now written into the law in Colorado that those who disobey the clear notices telling them to ski on piste and so on cannot bring a negligence case against the ski slope operators. In Australia, as my hon. Friend mentioned, many states have rewritten their laws on negligence. The wording in Western Australia reminds the court that personal negligence can be responsible for 100 per cent. of the case.
Let me end by giving an example of a case that did not go to court. It involves the British Canoe Union, which settled the case on legal advice. The BCU sent details of the case to me because it was concerned about that legal advice. It was told that it had to settle the case; otherwise it would face a long and costly court case, which it was likely to lose. The BCU says that, in its marathon two years ago,
“crews were competing over a 30 mile course in racing kayaks. Part of the course passed through a narrow, half-mile long cutting. A volunteer marshal was positioned at each end of the cutting to warn crews entering it about any powered craft which could present a danger to it.
A power boat entered the cutting and four minutes later a kayak arrived at the cutting travelling in the same direction. The marshal”,
who was standing on the bank,
“allowed it to enter on the strict understanding that there was a powered craft in the cutting and that they should not try to overtake it.”
There was no question but that they had heard the instruction, but they ignored it and overtook the boat. Fortunately, no one was injured, but there was a collision and the power boat was severely damaged. The BCU said:
“A claim was made against the volunteer marshal alleging he should have assumed the crew would have ignored his instruction and he was therefore negligent.”
Bearing in mind the background—which is that although one can bring contributory negligence in court, it almost never exceeds 50 per cent, and rarely exceeds 20 per cent—it was good legal advice that the marshal would be better off settling than fighting back. The BCU’s insurers paid up, but the result has been a substantial increase in insurance costs for all subsequent races, and the volunteer in question will never offer his services again.
My hon. Friend made it clear to the Committee that he is not particularly wedded to his wording; if the Government want to improve on it, that is fine. If we want a country in which young people have the opportunity to take risks, we must make sure that the courts do not penalise those who, whether as volunteers—that is my main concern—or in a commercial context, provide the opportunity for young people to take risks in a properly structured way. On the very rare occasions when some of them behave grossly irresponsibly—when they are drunk, manifestly disobeying instructions or whatever—the courts should not penalise the organisers, because if they do, we will go down the route of losing even more of the remaining adventure training opportunities. The result will not be fewer tragedies, as even the Royal Society for the Prevention of Accidents has pointed out; youngsters will go off and find alternatives, in canals and pools and on railway lines, and in other unsupervised activities, and so there will be far more tragedies, not fewer.

Lembit Öpik: My hon. Friend the Member for North Southwark and Bermondsey (Simon Hughes) has asked me to apologise on his behalf for his absence for part of this morning; he has to attend the funeral of his former colleague, Mick Heaney, and I hope that the Committee will be understanding about that.
My hon. Friend and I very much support amendment No. 10, which seems to introduce a degree of common sense. It would allow the courts to take into consideration the influence of drugs and alcohol. To be more precise, the amendment would require judges and courts to take account of an individual’s decision to compromise their capabilities by taking drugs or alcohol before undertaking a given activity. It would be an eminently sensible addition to the Bill. Although individuals may lose the capacity to act responsibly after taking drugs or alcohol, they are nevertheless responsible for putting themselves in a position in which their reduced capacity leads to an accident. For that reason, it seems eminently reasonable to include some provision directing courts to take seriously the contributory negligence of an individual who has necessarily compromised their abilities prior to embarking on an activity that may lead to them being injured or, in some cases, killed.
I ask the Minister to provide her perspective on this very important matter. The hon. Member for Canterbury (Mr. Brazier)—he is my hon. Friend for these purposes—has given a couple of examples, and I know of a couple more specifically involving people who are incapacitated in some way or another. I hope that the Minister can provide us with a helpful perspective on amendment No. 10.
I have two things to say about amendment No. 13. I actually think that it is well drafted. Separating proposed paragraphs (a) and (b) with the conjunction “or” is quite sensible. As has already been made clear in this debate, nothing in amendment No. 13 would compromise a firefighter’s ability to seek compensation when they have been injured as a result of carrying out their duties, but it makes it more difficult for individuals to launch vexatious and unreasonable compensation claims against the owner of premises that have caught fire. Obviously, if premises have caught fire, something has gone wrong and there has been a breakdown of some sort.
If firefighters could sue owners of property for negligence, almost every fire could be blamed on the proprietor or at least there could be a “have a go” compensation claimant in each case. Thankfully, in this country we have a noble body of firefighters who, on the whole, would not dream of attempting to sue individuals who own premises that have subsequently caught fire. There is nothing to be concerned about in the amendment because it does not prevent legitimate compensation from being paid out to firefighters who have been injured as a result of carrying out their duties.
With regard to subsection (2)(b), the Martin case has been mentioned. One of the news stories that greatly vexes the public is when an individual commits an offence and then succeeds in suing the victim of their offence. I do not want to get too far into the philosophical debate, but I should be interested to hear the Government’s view of what, on the face of it, seems to be a reasonable modification to the Bill. It makes it more difficult for someone who is breaking the law and, by inference, depriving an individual of their rights, to then sue that individual. I recognise that the Minister may wish to stay silent on this because it opens large gates to even bigger debates that impinge on some of her colleagues’ areas of work, but if she does say something the Committee would be most grateful.
Finally I turn to amendment No. 14. I recall the tribulations of Pete Jones, one of my constituents, who runs the Red Ridge outdoor pursuits centre. It is because of him that I initially got involved in this field of policy. He has suffered frivolous and vexatious claims on a number of occasions. They often come from parents, who, having allowed their offspring to enjoy the benefits of going to the Red Ridge centre, try to sue Pete Jones and his organisation for things such as banging heads on the bottom of a bunk bed when sitting up too quickly in the middle of the night.

Julian Brazier: Lest anyone in the Committee believes that the points about banging heads on bunk beds are lightly made, I understand from the Girl Guides that they have had a number of claims for exactly that. This is what we have come to in this country.

Lembit Öpik: I am grateful to the hon. Member for Canterbury (Mr. Brazier) for making that point. There is a breakdown of common sense when people make such claims. The injury is negligible, but the cost is enormous.

Kevan Jones: I am considering their comments carefully, but are not both the hon. Gentleman and the hon. Member for Canterbury indulging in what was described at Second Reading as the myth of the compensation culture? Could the hon. Gentleman give some specific examples of where someone has sued for banging a head on a bunk bed?

Lembit Öpik: This is an actual example. Pete Jones at the Red Ridge centre had to defend himself against a compensation claim made by parents on the basis that their offspring had banged their head on the bunk bed above the one in which they had been sleeping. In order to furnish the hon. Gentleman with further information, should it not be ruled out of order, I shall share the names with him between now and the afternoon sitting in order to assure him that this is not a myth—I do not wish to enter the names on the record because I do not want to exacerbate the situation. The example that I gave is real.
I know that the hon. Member for Canterbury can provide examples from the Girl Guides, where real compensation claims have been made against real people who have acted in good faith in attempting to supply services for the Girl Guides and for other organisations.

Julian Brazier: I have cited several direct examples from the Scouts, who have a policy of fighting such cases and have provided chapter and verse. The Girl Guides organisation has a policy of never releasing the names involved in cases. However, I can tell the hon. Member for North Durham (Mr. Jones) that a member of the Guides council who comes regularly to our meetings told us that an action had been brought by a girl who banged her head; not only that, but a payout was made in a case of a girl getting burnt by fat spurting on to her hand from cooking sausages over a fire—she was not camping but was in the garden of the Guide hut. These are not middle-class myths; they are actual cases.

Lembit Öpik: This highlights the disappearance of common sense and reasonableness from the compensation environment. I say to the hon. Member for North Durham that none of us is trying to prevent legitimate compensation claims from being pursued through the courts. The hon. Member for Canterbury and all the rest of us involved in the all-party group on adventure and recreation in society are not trying to prevent negligent activity and irresponsible behaviour by those providing the services from experiencing the full force of the law. We are trying to prevent individuals who act in good faith and provide a net social benefit from being the victim of the “have a go” compensation culture, where individuals, far from seeking compensation to get redress for real suffering that has been caused, instead come to the view that they might be able to make a few bob on the side by taking something like this through court.
I stress to the hon. Member for North Durham, and to the Committee as a whole, that the difficulty is that being found innocent is still extremely expensive, because one still has to pay one’s costs. I shall give way to the hon. Gentleman, but I am a bit cautious about doing so because we might be straying a bit far from amendment No. 14 and the points that I was making.

Kevan Jones: The hon. Gentleman shows a great degree of ignorance of compensation and legal cases, because the case involving a young girl being burnt by fat would not succeed unless there was negligence and unless an horrific burn was involved. We are not talking about a splashing of fat out of a fire. I am sorry that he is again using inflammatory language about the idea that there is a compensation culture. We heard on Second Reading and in Committee that there is no evidence for it. I am sure that he and his fellow Liberal Democrats would be the first to cry wolf if, for example, someone was injured on a school trip.

Lembit Öpik: I have a great personal affection for the hon. Gentleman for reasons that stretch right back to our Newcastle city council days. I could have sued him for flicking my ears on at least one occasion during a council meeting. It was an unprovoked attack and I could have accused him of assault. Despite that affection, I must say that it is he, rather than ourselves, who is making unsubstantiated criticisms. I can and will furnish him with the details of the example that I have cited from Pete Jones’s Red Ridge centre. I challenge him to illustrate why he thinks there is not a perception of a compensation culture and why he thinks that all the examples we have given were legitimate claims. If he really feels that way, what is he doing on this Committee? Why is he supporting the Government’s Bill, which seeks to redress a balance that the Minister validly thinks is an issue?

Julian Brazier: Does the hon. Member for North Durham not appreciate that we are desperately short of Scout masters and Guide leaders because of those cases? He was in his place when I described the Manchester case, which took place six days after the first debate in the House of Lords—it was in the middle of the process there. In that case, an award was made against the Scouts of £15,000. A Brownie attending a pantomime put on by the Scouts as a kindness to younger children allegedly cut herself when she put her hand under her chair in an auditorium that had been separately inspected twice—once by the Scout master and once by the licensing officer from the council. I read out the details, and the hon. Gentleman was there—

Peter Atkinson: Order. That intervention is rather long.

Lembit Öpik: I am tempted to suggest that we are straying into the realms of a Second Reading or Third Reading debate rather than talking about the amendments. However, Mr. Atkinson, the hon. Member for North Durham provoked us. He sought to distract the Committee from its legitimate activity; in the normal world, he could be open to charges of libel for the upset and emotional distress that he has caused.
In fairness to the hon. Member for North Durham—I always try to seek the positive in his contributions—what he said relates directly to proposed subsection (2)(b) in amendment No. 14. It states:
“In considering whether an activity is a desirable activity for the purposes of this Part, the court shall have regard to the age of the claimant and in particular whether the claimant is...under 14 years of age but can prove that he did not have the capacity to understand the nature of his actions.”
The hon. Gentleman and the Committee would obviously be highly sympathetic to that sentiment.
If someone under the age of 14 did not understand the consequences of what was going on, one would infer that he had acted in good faith. If he came to grief, the court would want to consider that fact when judging whether sufficient care and attention had been taken by the provider of the service, and it would draw the appropriate conclusion. However, it also works the other way round. If it can be shown that someone under the age of 14 who had the capacity to understand the nature of his actions had acted in what could be regarded as an irresponsible fashion, that would afford some protection to providers of services who in good faith genuinely believed that they had sufficiently warned their relatively young clients of the dangers of straying from the recommended path.

Oliver Heald: In clause 1, we are consider whether an activity is “desirable” when deciding a negligence claim. However, in the amendments we are considering whether cases that have already been decided at the highest level should go further. For instance, we ask whether an occupier should be liable in circumstances in which harm had arisen because of an individual’s choice to engage in a dangerous activity. By and large, those cases seem to suggest that the occupier should not be liable.

Lembit Öpik: The hon. Gentleman’s observation is valid. I hope that the Minister can provide some perspective, for the benefit of the record, on how the courts should interpret negligence in such circumstances—we have given many examples this morning—when the providers of services have done everything that they reasonably can to ensure that their clients understand the dangers, but the latter nevertheless act in what used to be called, in non-legal terms, an irresponsible way.
I accept that one of my questions may be beyond the remit that the Minister chooses to take on today, but I hope that she will be able to give quite a complete reply on amendments Nos. 10 and 14.

Philip Hollobone: It may be worth dealing, during discussion about what is or is not a desirable activity, with the terrible dilemma faced by many police officers in responding to emergency calls. I recently spent 22 days with the Northamptonshire police force as part of the police parliamentary scheme and I learned that there are three grades of police driver—advanced, standard and basic. In a nutshell, only someone with an advanced or standard driving qualification with the Northamptonshire police is allowed to exceed the speed limit in responding to emergency calls.
Each police officer has on their person an alarm button that they are encouraged to press if they are under threat of personal attack. If they press it, every police officer in the county knows that that police officer is under threat, and is advised to get to the scene of the incident as quickly as possible. That presents a huge dilemma for the Northamptonshire police officer who has only a police basic qualification. Should he or she proceed to rescue his or her colleague within the speed limit, or exceed the speed limit to get there as quickly as possible?
I should have thought that most of us would consider it a desirable activity for that police officer to respond to the call as quickly as he or she could, but the advice that they are given is that if they exceed the speed limit and something goes wrong they will be personally liable and will be likely to lose their job. In response to the amendments I should welcome the Minister’s advice and guidance on whether that dilemma could be solved by Government action.

John Mann: I wanted to make a few remarks on the amendments, whose underlying tone suggests an intoxicating cocktail of Conservatives and Liberals working together. To illustrate my remarks I want to use an example that may be from your area, Mr. Atkinson; as I recall, Otterburn is in or near your constituency. I used to run outward bound courses at Otterburn so I have some first-hand experience of the issues.
The Bill grapples with two major dilemmas, which the amendments handle rather badly. The first concerns drugs and alcohol. I cannot recall whether Otterburn was one of the locations where the dilemma arose, but it did arise at others that I have used. One of the key dilemmas for an organiser—and I was organising both for youths and for adults—was whether to have a bar open, and how often.
If someone is organising what I might call adventure pursuits and chooses to have a bar open in the middle of the day there is clearly direct and contributory negligence. It may be, however, that the operation being operated or hired is a commercial one. One of the big battles that I used to have either in those situations or in general education was about persuading the venue to close the bar that it wanted to profit from, particularly at midday but also, potentially, into the early hours of the morning.
Some of my hon. Friends may recall my horrific success in closing the TUC bar at its national education centre, at midday, precisely because there was no reason why anyone doing trade union studies would need the benefit of alcohol. If the context is one of more dangerous pursuits than the genteel learning of employment or industrial tribunal law, there is a dilemma. One of the issues emanating from the amendments that the Minister needs to contemplate is that there is a clear difference between a commercial organisation that operates for profit, where the pressure to maximise income generation, including from alcohol, is part of the consideration, and a purely voluntary organisation. Some thought needs to be given to the difference between voluntary and commercial activities.
The second issue relates to the question of children. The amendment is particularly bad in that context, although well meaning.

Lembit Öpik: Will the hon. Gentleman give way?

John Mann: If I may follow through the logic, I am sure that the hon. Gentleman will want to intervene then.
A culture is growing in this country of what one might call the adrenalin junkie, whereby outdoor pursuits are taken to the limit. I chair the parliamentary mountaineering club. In some sports, the concept of “limit” is clearly defined, but outdoor pursuits are generally different. I recall a particularly horrific case involving schoolchildren from, I believe, Leeds—certainly from west Yorkshire. They were river running under adult supervision. I do not know the precise details, but I do know from my experience that what tends to happen is that the adult organiser, who may be an adrenalin junkie themselves, pushes the boundaries of outdoor activities, and moves beyond some genteel walking, caving, climbing, abseiling and canoeing.
Such a culture has begun to build up. It has been reined in a little, but one could find oneself on a course in the Lake district going down rivers, going down some fairly high mountains and walking down reasonably tricky footpaths. On Helvellyn, people were attempting to parachute down becks.
I hope that the Minister will give some thought to this critical point, particularly in respect of young people: these were adult-initiated pursuits. The child was going on an adventure holiday and in reality had no say over which combination of pursuits they participated in, and the parent at home would probably have had no idea whatever about the activities. They may have had a general picture, but they may not have even heard of some of the more adrenalin-fixated pursuits that have started to creep in. That kind of differentiation is important in this context, as the adult is making the decisions, in some cases irrationally.

Oliver Heald: Does the hon. Gentleman acknowledge that Arthur Wainwright states in “The Eastern Fells” that the safest way off a hill if the mist comes in is down a beck? There is a question about introducing nanny state concepts. The fact is that most hill walkers would go down the beck in such circumstances.

John Mann: That is not Wainwright’s advice. [Hon. Members: “Yes it is.”] No, it is not.

Oliver Heald: I will bring the book in tomorrow.

John Mann: The hon. Gentleman is misunderstanding Wainwright and also my remarks. How one escapes from a mountain following the course of a beck or a river—going down and wading through—is fundamentally different, particularly in bad weather. No mountain guide would advise people to go through water to try to descend a mountain, as body temperature would be reduced. Indeed, avoiding the water is fundamental. [Interruption.] The hon. Gentleman has reinterpreted Wainwright.

Oliver Heald: I accept the hon. Gentleman’s point, but I would not expect to walk down the middle of the river.

John Mann: That is my precise point. Some of the adrenalin-junkie outdoor pursuits do precisely that. In other words, one walks part way up Helvellyn and goes down the beck. That may or may not be a legitimate pursuit, but a balance needs to be drawn, for young people in particular, and included in legislation, so that the extension of the adrenalin-based society with, from my experience, the outdoor pursuits organiser at the forefront, is brought into the context of what is and is not legitimate. In particular, there is a need to clarify what is free choice.
As the course leader of a group of young people, if they liked my leadership style I could persuade them to do the most absurd things if I chose to do so. Indeed, in a non-dangerous context, not in adventure pursuits but through the power of the paper-based exercises that formed part of the development and learning, we put groups into absurd positions. I could have devised—I am aware of others who have done so—dangerous pursuits in the same context. Such projects are to do with team-building, group interactions and communication skills, but the difference between building danger and non-danger into that is often divided by a fairly thin line. My only point is to point out that the adrenalin-based nature of many new pursuits is itself a potential danger that clouds part of the debate.

Julian Brazier: I am listening carefully to the hon. Gentleman. I have two quick points. First, I understand that the number of children killed in adventure training pursuits across sport, adventure training, school trips and the rest is an average of about three per year. Large numbers of young people are dying of drug addiction, some are dying of alcoholism and large numbers are killed in accidents pursuing things. My second point is that for those people whose parents cannot afford expensive adventure training holidays of the sort described by the hon. Gentleman, the opportunities are getting thinner and thinner and so they are going out and finding their own ways of amusing themselves.

John Mann: The hon. Gentleman does not, in my view, make a legitimate point. I also happen to be the chair of the all-party group on youth hostelling and we provide 25,000 places for young, disadvantaged people. I provided some myself this week for free for young people with poor backgrounds in my constituency so that they can do well-organised activities outdoors. We must not confuse the rightful fear produced by such adventure and risk-taking—which is felt by definition during pursuits such as mountaineering—with the adrenalin-junkie nature of some of the new pursuits. People rightly want to be able to pursue legal cases should such pursuits go wrong. That is part of the balance of reining them in.

Julian Brazier: Will the hon. Gentleman give way?

John Mann: I will give way to the hon. Member for Montgomeryshire.

Lembit Öpik: The amendments have prompted a useful debate. What we are discussing is in line with amendment No. 14, in particular. In that context I have two observations. Is the hon. Gentleman aware of the theory that we are each attracted to varying levels of risk and that that is built into us as individuals? As I have said before, Professor Heinz Wolff calls it vitamin R, where R stands for risk. Would the hon. Gentleman accept that through history each of us has had a different threshold of risk but that we will fulfil the need for our relative levels of risk? If he accepts that, I would challenge his assumption that we are becoming adrenalin junkies. There has not been a change in the relative need for risk, but a suppression of the opportunity to fulfil that need in a legitimate way.
My second point was a statistic that I sought to research. Is the hon. Gentleman aware that we were looking into trying to compare how many deaths per thousand or per million occur during organised and supervised adventure activities against a control sample of individuals of the same age group and social background who are not in supervised adventure activities? It seems that the death rate and injury rate are lower in the supervised activities than in the control sample. In other words it is safer, even with the deaths and injuries that he has described, to have people on those adventure activities than not.

John Mann: I agree. That is why we need a balance in the law. The point of what I intended to be a short contribution but which has been widely intervened on was to ensure a balance in the debate, too. I disagree on the issue of adrenalin junkie growth, because that is what I observe. Admittedly, it is a small part of the activities that take place but, with regard to the river running exercise that led to the tragedies in the Yorkshire dales, I can see, having organised such pursuits for many years, no logic whatever that suggests that there is any added value in organising that kind of activity for young people. It seems to me that the move into new ways of finding adventure and excitement is potentially beyond the bounds of what is legitimate if they are for young people.
If the hon. Member for Montgomeryshire—at his more venerable age—wishes to climb mountains and try to shimmy down rivers, he is welcome to do so, but he should not be allowed to do so with a group of young people whose parents have perhaps paid him to do so without realising precisely what is going on and knowing the risks. It is not rational to say, as the amendment does, that a young person is capable of making a personal decision in relation to a group activity. That is not coherent.

Michael Clapham: My hon. Friend has extensive experience of working with younger people. In his experience, would a judge deciding on a case of negligence consider the nature of the instruction given, whether the person bringing the claim had failed to take into consideration the instruction given, and whether the person had indulged in alcohol or drugs?

John Mann: Although I am not the greatest lover of judges, my experience is that those factors are likely to be taken into account. I would not want to give the impression that I believe that the danger of the compensation culture does not exist, because there are examples of that, and I will give one relating to mountaineering in order to balance things out.
There was the absurd case of a young person, educated not within—it is not within yet—but on the borders of my constituency, who employed a professional mountain guide to climb Mount Everest and died in the process and whose father is suing the mountain guide. That is where the illegitimacy comes. Decisions taken in such a context can be wrong and of course there can be negligence, but if one has determined to climb Mount Everest and does any research, one knows that the likelihood of death can be, depending on the time of year, anything from one in 10 to one in 20 and therefore it is a highly dangerous activity. One knows that, at those heights, even the most experienced mountain guide is not necessarily going to be working at 100 per cent., because of lack of oxygen. To sue on that basis is illegitimate.
The hon. Member for Canterbury rightly made the point that if one sues, there is the dilemma of whether to settle because the legal costs are so great. That is exactly what the Bill needs to address. We need to bring into this context—this includes organisations such as the Scouts—the way in which adults can make determinations for children. Some years ago, when I first went on a Scout camp—no, this was pre-Scouts; it was a Cub camp—the instruction was, “You will do this; you will do this; you will do this.” As I catapulted down from the first tree, luckily the level of mud was such that I did not break a leg. However, it was not my choice to do that aged eight or nine; in reality, it was the leader’s choice. The peer group pressure meant, in essence, that the activity was compulsory—“You will do that.”
That is where we need to get the balance right. Adults make those decisions for children. It is right and proper that, in ensuring that we rein in the compensation culture, we do not reduce in any way the improvements in risk assessment or health and safety in such activities. That is the dilemma that the Minister and the Department have been handling and I hope that she will bear in mind the points that I have made.

Julian Brazier: The mountaineering case to which I referred in the last sitting but could not name was Hedley v. Cuthbertson in 1997, a summary of which is in the Library brief. I hope that the Committee will forgive me for making that point after the thoughtful contribution that we have just heard, and that it is in order for me to do so. It was an equally shocking case and one in which the instructor lost.
The hon. Member for Bassetlaw (John Mann) has a tremendous reputation for his knowledge about alcohol—a sentence that I phrase quite carefully. I remember that when we received our Home Office brief, his was one of the most respected voices in the House on the matter. I am sure that he would accept that his point about alcohol could be easily coped with by modifying the amendment of my hon. Friend the Member for North-East Hertfordshire. The provisions should not be nullified, but tightened up where there is an incentive to provide alcohol or where people have chosen to provide it.
I shall make two points about the wider issues that the hon. Gentleman raised. First, the Youth Hostels Association, to which he referred, is a splendid body. I cannot claim as close an involvement with it as he can, but I can tell him that it was one of a number of youth groups that wrote in support of my Promotion of Volunteering Bill, which sought to set a much higher standard for negligence cases. The YHA not only wrote to support the Bill, but was a co-signatory, along with the Scouts, Guides and other youth organisations, to a letter written in support of the Bill that appeared in The Times.
Secondly, I felt towards the end of the hon. Gentleman’s contribution that, unusually for him, what he was saying did not bear directly on the other amendments. My hon. Friend the Member for North-East Hertfordshire said that the gist of the other two amendments was that the law should be different where people have deliberately disobeyed instructions or where someone has criminal intent. The hon. Gentleman, however, seemed to be saying that where an adult had given someone an illegitimate instruction to do something dangerous, they would get caught by that. Reading my hon. Friend’s amendments, I cannot see that, but even if it were the case, a drafting improvement would be needed, rather than an attempt to strike against the main import of what my hon. Friend is trying to achieve. I think that the hon. Gentleman is actually with us on this issue.

Lembit Öpik: Before the hon. Gentleman finishes, and to prevent me from making a second speech of my own, will he tell us whether he agrees on another interesting observation made by the hon. Member for Bassetlaw? I have not considered before—but it must be correct—that one of the most unpleasant experiences that children have at school is of being forced to do things that are outside their risk envelope; in other words, being forced to operate in an environment that exceeds their need for risk.
One of the observations that arises from the thoughtful contribution that the hon. Member for Bassetlaw made, and on which we should all reflect, is that we need to protect young people from being forced to operate in a risk environment that far exceeds their own desires. Such activity not only provides very little educational benefit, but can lead to unnecessary psychological pressure and risk for the individuals participating in it.

Julian Brazier: The hon. Gentleman makes a good point, but the case for the amendments seems to me overwhelming, although my hon. Friend made it clear that he is not particularly wedded to the wording of any of them. Indeed, on the narrow point of where someone supplies alcohol, the hon. Member for Bassetlaw was quite right: the wording could do with some tweaking. However, I urge the Minister and the Committee to support the amendments.

Bridget Prentice: This has been a wide-ranging and useful debate, from which I have certainly learned a great deal. I did not realise how many experts the Committee has on all sorts of adventurous activities. I feel very unadventurous in comparison with some hon. Members present, although I have managed to abseil down Citibank in Lewisham. That is about as much as I can manage.

Oliver Heald: Wow!

Bridget Prentice: I am glad that the hon. Gentleman is suitably impressed.
I very much welcome the thinking behind the amendments and agree that we need to strike a balance, with people behaving responsibly and an element of common sense brought back into the situation. That is why I hope that we can reach some agreement—we began to see agreement between the hon. Member for Montgomeryshire and my hon. Friend the Member for Bassetlaw towards the end of the debate—about the way in which we treat young people. Making them go beyond their adventurous abilities is something that must be considered.
Nevertheless, I ask the hon. Member for North-East Hertfordshire not to press the amendments. I shall try not to take up too much of the Committee’s time, because we have had a thorough debate, but I can say that my main reasons for arguing against the amendments are that there is already sufficient legislation to cover what he is trying to achieve, and that there are some drafting errors, which as he recognises, is often inevitable when one puts together amendments in this way.
I reiterate that it is important to ensure that people take responsibility for their actions, and that a proper balance is struck between the individual’s rights and responsibilities. The Law Reform (Contributory Negligence) Act 1945 already allows the court to take into account all aspects of a claimant’s behaviour and the extent to which his or her negligence might have contributed to the injury suffered. The hon. Member for North-East Hertfordshire said that his amendment could be called the Tony Martin amendment, but it would not have protected Tony Martin, because he was sued for the deliberate tort of battery, not for negligence. Also, section 329 of the Criminal Justice Act 2003 already makes it much more difficult for any criminal to sue for battery; I hope that the hon. Gentleman will take that into account.
On drunkenness, the court will reduce damages on account of the carelessness of a drunken claimant not because he was drunk, but because he was careless. It might interest hon. Members to know that a drunk cannot use drunkenness as an excuse for not taking care of himself, or as much care of himself as if he had been sober, but of course, the court will always decide on the evidence before it.
The hon. Member for Canterbury talked about his canoe case, which was obviously a difficult one, but as it did not go to court, we cannot speculate on what the court might have decided.

Julian Brazier: I am grateful to the Minister for coming to that point. Of the cases about which I have given the Committee specific details, that is the only one that was settled out of court. Does she accept the testimony from the legal sources that I quoted that contributory negligence in this country is never above 50 per cent. and rarely above 20 per cent.? On that basis, the legal advice was pretty understandable.

Bridget Prentice: First, I do not accept that contributory negligence is never more than 50 per cent. While the hon. Gentleman was speaking, I was looking at a list of cases in which contributory negligence was up to 90 per cent. I shall come back to that point in a minute when I find the example. Just because someone disobeys instructions, it does not mean that the defendant was not negligent also; one or two of my hon. Friends made that point.
I return to contributory negligence. A workman climbed up and interfered with unfenced transmission machinery and was injured as a result, with 90 per cent. contributory negligence. A machinery attendant climbed on unfenced transmission machinery to catch a pigeon roosting behind it, with 80 per cent. A metal moulder who failed to wear protective legwear suffered burns to his ankles from molten metal splashes, with 75 per cent. contributory negligence. I have a number of other examples.

Oliver Heald: The concern is that when such an instance is overwhelmingly the individual’s fault, it should not come to the point where the court says, “It’s your fault.” If somebody is so reckless as to be 90 per cent. responsible, surely the court should just say, “No, you haven’t got a claim, because it’s your fault.”

Bridget Prentice: In many cases, the court does say that. Often, where damages are given, they are derisory damages to send a message that the court does not see such claims as sensible. That should give lawyers the message—I think that this is the point to which the hon. Member for Canterbury was alluding—that they should not encourage their clients to pursue such cases.
I turn now to the amendments. There are drafting difficulties with amendment No. 10. It is not clear what is meant by a court determining negligence. It could mean that the court is to have regard to such factors at any stage of its determination of a claim, including any assessment of damage, or it might be construed to mean that the court could regard them when considering liability. Nor is it clear whether the court would be required to have regard to each factor as a separate matter wherever it arises, or to have regard to the extent to which the instructions were followed and the effect of drugs or alcohol.
On drugs and alcohol, although I realise the difficulty, the amendment does not include a definition of the term “drugs”. It could be interpreted rather widely, and might even include situations where someone was taking a prescription medicine. I do not think that that is what the hon. Member for North-East Hertfordshire was trying to achieve.

Lembit Öpik: The Minister seeks to take an extremely pedantic view of the amendment—a remark that sounded worse than I intended. Surely she accepts that no measure would be that precise. I understand from her previous comments, and especially from the examples that she has given, that she agrees with the amendment’s intent. She hopes that courts would take account of individual decisions to act irresponsibly, such as by getting drunk or taking drugs, prior to going on an adventure activity. Will she confirm that even if she does not like the amendment’s wording, she respects its intent?

Bridget Prentice: I have much sympathy with the amendment’s intent. We need to return to a situation where people take some responsibility for their own actions, albeit with the caveats mentioned by my hon. Friend the Member for Bassetlaw, particularly in relation to young people. I shall also talk about adults with learning difficulties, for example, who could be taken on adventure holidays. When we talk about desirable activities, we do not want to start reducing any particular group’s opportunity to participate in such activities. I have been known to say—in particular, I shall say it when we discuss claims farmers—that sometimes accidents happen. An accident is an accident and we must be very careful about pursuing it.
As I said, we do not have a claims or compensation culture in this country, and one reason for introducing the Bill is to ensure that we do not go down that road. My hon. Friend was right to try to persuade Opposition Members to draw back from their suggestion that the compensation culture was as widespread as might have appeared from earlier comments in the debate.
Amendment No. 13 is unnecessary and disproportionate. There may be some confusion about the matter because it would require the court in considering the nature of the activity to have particular regard to whether the claimant
“(a) willingly accepted a risk as his, or”—
I stress the word “or”—
“(b) entered onto land...with the intention of committing an offence.”
It is difficult to see how those factors, which are concerned with what was in the claimant’s mind, might be relevant to whether the activity itself was desirable.
The amendment is also unnecessary because we have already taken action in section 329 of the Criminal Justice Act to limit considerably the possibility of a civil claim from a criminal for trespass to the person. Nothing has changed since that Act was passed—either by way of evidence of cases in which the courts might have found in favour of the criminals or for any other reason—to justify a different approach now.

Oliver Heald: The point about clause 1 is that it is a restatement of the law to persuade people organising trips and so on of what the law actually is. One aspect of the decision in Tomlinson, which has guided clause 1 and which is not dealt with, is that an occupier should not generally be liable where the danger and harm arose from the choice of the individual to engage in a dangerous activity. Why cannot that point be restated, too?

Bridget Prentice: It is not necessary to restate that because it is clear in the Occupiers Liability Act. The occupier would not be held liable where a person decides of their own accord to pursue a dangerous activity. There was a lengthy discussion about a firefighter going into a house. It would be the householder’s common duty of care under the Occupiers Liability Act to take such care as is reasonable in all the circumstances to see that the visitor, in this case the firefighter, is reasonably safe in using the premises.
In the case of a fire, however, it would be difficult to see how the occupier would be able to make it any safer for a member of the fire brigade. It might be different if the firefighter had been called to the house to free someone from railings and the premises were dangerous in some way and the firefighter was injured. As so often in such cases, and in the examples that hon. Members have cited, it very much depends on the circumstances of the case.
As far as criminals are concerned, the courts already take the circumstances of the case into account and a number of factors limit the likelihood of any claim by a criminal succeeding. For example, courts will take into account why a trespasser was on the property. That is clearly relevant to foreseeability and the steps that it is reasonable to take to avoid risk of injury to the person or the property. The amendment seems to go further than that, because it would provide for the courts to take into account the intention of the trespasser. Courts are already perfectly capable of doing that.
Any claim by a criminal is likely to raise the common law maxim that an action does not arise from an unjust cause. It would be difficult in practical terms to assess the intentions of a claimant and establish whether they entered the land intending to commit an offence. It might be more obvious in the case of a burglar who went on to the land in the dead of night, but not all cases will be so clear-cut. As I said, the Occupiers Liability Act contains detailed provisions about liability in reference to trespassers. Another question is whether accepting a risk would be decided on the same principles as cases where one person has a duty of care to another.
There are similar problems with amendment No. 14. The factors that relate to the claimant’s age and understanding would have to be taken into account by the court in deciding whether the activity is desirable, and there is a danger that that would be unworkable. It is extremely difficult to see how those factors that are concerned with what a claimant might be expected to understand are relevant to the issue of whether the activity is desirable. For example, would the activities at a Scout or Girl Guide camp be considered more desirable if the children involved were under the age of 10 or if they were over it but the claimant were under that age? How would the provision apply to children with learning difficulties, or even adults with learning difficulties? The amendment would require the court to wrestle with such questions. Therefore, it could easily sow seeds of confusion and uncertainty to no useful purpose.
Putting those issues aside, the amendment is unnecessary and a potential source of confusion and unfairness. Courts already take into account the relevant factors when determining the duty that is owed with what is required to meet it. That includes the age, experience and awareness of the claimant and any disability that he or she has. In its report that led to the Occupiers Liability Act, the Law Commission said that 
“among the circumstances which will be taken into account are the nature of the trespassory entry and the age and the character of the trespasser.”
To impose a requirement to consider those issues in regard to a particular age group is superfluous. It also has the potential to raise anomalies. For example, as it stands, the amendment would not apply to adults with learning difficulties, some of whom may have the mental capacity of a person under the age of 10. For those reasons, I ask the hon. Member for North-East Hertfordshire to withdraw the amendment.
For the sake of the hon. Member for Kettering (Mr. Hollobone), who explained to me that he had to go to another Committee and who asked about a police officer who exceeds the speed limit, I put on the record the following point. Anyone who exceeds the speed limit commits a criminal offence. In a civil claim for compensation if, for example, a pedestrian is injured by a speeding police car, the courts would take all the circumstances into account. I hope that that answers the question that he raised, but if it does not, I am happy to write to him to give him a more detailed response.

Oliver Heald: I am happy to reflect on the amendments. I just say to the Minister that we are talking in the context of a restatement of the law and not of creating new law. I beg to ask leave to withdraw the amendment.

Amendment by leave withdrawn.

It being twenty-five minutes past Ten o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o’clock.